My las
t post provided an overview of the Berman hearing process when an employee begins a claim for unpaid wages with the Labor Commissioner. If the parties do not settle the claim at the settlement hearing, then the matter will be set for a Berman hearing pursuant to Labor Code 98(a). The Berman hearing was designed to provide both parties a quick and easy way to resolve wage disputes. I like to think of it as very similar to a small claims proceeding. However, unlike small claims court which can only hear cases were the amount in dispute is $7,500 or less, the Labor Commissioner can hear and rule upon wage claims of any size.
The formality of the Berman hearing varies dramatically from the Deputy Labor Commissioner who presides over the hearing. Some of the Deputy Labor Commissioners like the hearings to proceed in a very formal manner, much like a civil trial, while others are very hands off. Generally, each side will present their case, and will have the ability to cross-examine the other parties and witnesses. There are no set rules on how the hearings are supposed to be conducted, such as which party must present evidence first. I’ve even had a Deputy Labor Commissioner take a witness out of logical order of testifying in order to accommodate the witness’s schedule. The rules of evidence do not apply, so the process can take many different forms. Also, as I mentioned in my post describing an overview of the Berman hearing process, parties may have a lawyer represent them in front of the Labor Commissioner, but it is not required.
Unlike a civil trial, parties preparing for a Berman hearing generally are not allowed to conduct discovery to get a preview of the facts and witnesses the other side will present. So preparation for a Berman hearing may be a bit of guesswork, it is usually possible for the employer to get a good idea of the employee’s claims from the face of the complaint and the facts and issues that were discussed during the settlement conference. There are, however, a few items employers should do when preparing to defend a claim at a Berman hearing:
- Prepare an opening statement setting forth what the evidence will show during the course of the hearing. Again, while some Deputy Labor Commissioners may simply start the proceeding without an opening statement, it is a good practice to have a short 5 minute summary of what your evidence will show.
- Prepare an outline of the issues each witness will testify to. This helps streamline the testimony, and ensures that all of the items necessary areas are covered.
- Prepare an outline for points to make during a cross-examination of the employee (as well as any potential witnesses).
- Bring relevant witnesses to the hearing.
- Bring the appropriate documents to use as exhibits.
Before the hearing beings, all of the witnesses are sworn in and the testimony given during the hearing is recorded by an audio recorder. This is why it is important to be prepared, know the law, and to know which admissions are important to obtain. If the employer appeals the Labor Commissioner’s ruling, both parties may obtain a copy of the audio recording of the Berman hearing. It is very critical to know the issues, and the use the Berman hearing as a way to get testimony in order to assist your case if there is an appeal of the Labor Commissioner’s ruling.